Com. v. Codner, G.

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
GARY LEAFORD CODNER
Appellant No. 1350 MDA 2014
Appeal from the Order July 28, 2014
In the Court of Common Pleas of Berks County
Criminal Division at No(s): CP-06-CR-0002308-2010
BEFORE: PANELLA, J., OTT, J., and MUSMANNO, J.
MEMORANDUM BY OTT, J.: FILED APRIL 08, 2015
Gary Leaford Codner appeals pro se from the order entered July 28,
2014, in the Berks County Court of Common Pleas, denying his request to
appeal nunc pro tunc from the dismissal of his first petition filed pursuant to
the Post Conviction Relief Act (PCRA), 42 Pa.C.S. § 9541 et seq. Codner
seeks relief from the judgment of sentence of three to five years’
imprisonment imposed on June 29, 2011, following his jury conviction of
possession with intent to deliver (“PWID”) marijuana and possession of
marijuana.1 On appeal, Codner argues (1) the trial court did not have
subject matter jurisdiction over his offenses, and (2) the PCRA court erred in
dismissing his amended petition. For the reasons that follow, we affirm.
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1
35 P.S. §§ 780-113(a)(30) and (a)(16).
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The relevant facts underlying Codner’s convictions are summarized in
the decision of this Court affirming his sentence on direct appeal, and we
need not recite them herein. See Commonwealth v. Codner, 47 A.3d
1248 [1344 MDA 2011] (Pa. Super. 2012) (unpublished memorandum at 2-
5). The complex procedural history of this case is as follows. Prior to trial,
Codner filed a motion to suppress the narcotics evidence recovered during
the incident. The trial court denied the suppression motion following a
hearing. Thereafter, on June 16, 2011, a jury convicted Codner of PWID and
possession of marijuana. On June 29, 2011, the trial court sentenced him to
a term of three to five years’ incarceration for the charge of PWID, 2 and
found the possession charge merged for sentencing purposes. Codner filed
a direct appeal contending the testimony of two Commonwealth witnesses
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2
The court imposed a mandatory minimum three-year sentence pursuant to
18 Pa.C.S. § 7508, because Codner possessed, with the intent to distribute,
25 pounds of marijuana. See 18 Pa.C.S. § 7508(a)(1)(ii) (mandatory three
year sentence when the amount of marijuana involved is at least 10 pounds
but less than 50 pounds).
We recognize that Section 7508 has been found to be constitutionally
invalid under Alleyne v. United States, 133 S.Ct. 2151 (U.S. 2013). See
Commonwealth v. Newman, 99 A.3d 86 (Pa. Super. 2014) (en banc);
Commonwealth v. Vargas, ___ A.3d ___, 2014 PA Super. 289 (filed
December 31, 2014) (en banc) (applying Newman to Section 7508).
However, to date, “neither our Supreme Court, nor the United States
Supreme Court has held that Alleyne is to be applied retroactively to cases
in which the judgment of sentence had become final.” Commonwealth v.
Miller, 102 A.3d 988, 995 (Pa. Super. 2014).
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warranted a mistrial. This Court affirmed the judgment of sentence on
March 19, 2012. See Codner, supra.
On May 17, 2012, Codner filed a timely, pro se PCRA petition, and on
May 21, 2012, J. Allen Daringer, Esq., was appointed as PCRA counsel.
However, on January 3, 2013, Codner filed a motion requesting to proceed
pro se. Thereafter, on March 14, 2013, the PCRA court conducted a
“counsel status hearing” via videoconference.3 After the hearing, on March
26, 2013, the PCRA court entered the following order:
AND NOW, this 26th Day of March, 2013, after hearing
held by video conference, [Codner’s] request to proceed pro se
in pursuing relief under the Post-Conviciton Relief Act (PCRA) is
hereby GRANTED. Attorney J. Allen Daringer’s appearance is
withdraw (sic) as appointed counsel in this matter.
Further, [Codner] is ORDERED to file an Amended Petition
that properly sets forth all relevant claims for relief under the
PCRA, 42 Pa.C.S.A. § 9541 et. seq., no later than April 30,
2013.
Order, 3/26/2013. Thereafter, Codner filed an amended pro se PCRA
petition on April 3, 2013.4
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3
Upon our request, the PCRA court informed us that there exists no
transcript from the videoconference. The court did not explain whether the
court reporter’s notes have simply not been transcribed, or whether there
was no court reporter present.
4
Although Codner designated the document a “Writ of Error Coram Nobis,”
the PCRA court properly considered the filing to be an amended PCRA
petition. See Writ of Error Coram Nobis, 4/3/2013. The writ of coram nobis
“provides a way to collaterally attack a criminal conviction for a person ...
who is no longer ‘in custody’ and therefore cannot seek habeas relief....”
Commonwealth v. Descardes, 101 A.3d 105, 109 (2014) (en banc),
(Footnote Continued Next Page)
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On March 5, 2014, the PCRA court provided Codner with notice,
pursuant to Pa.R.Crim.P. 907, of its intent to dismiss the petition without
conducting an evidentiary hearing. Codner filed a timely response to the
court’s Rule 907 notice, and, on March 24, 2014, the PCRA court entered an
order dismissing Codner’s petition.
Thereafter, on April 7, 2014, Codner filed a “Request for Transcripts”
and a “Certification of Service.” The record does not include a notice of
appeal from the PCRA court’s March 24, 2014, order, nor does the lower
court docket reflect that Codner filed a notice of appeal. On July 3, 2014,
Codner filed in this Court an application for relief, asserting that his notice of
appeal, purportedly filed in the lower court on April 7, 2014, was not
docketed, and requesting that the appeal be docketed so he could proceed.
In response, this Court directed the PCRA court, within 10 days of the order,
to “forward [Codner’s] notice of appeal to the Prothonotary of this Court or
notify this Court that the notice of appeal was not filed as [Codner] claims.”
Order, 7/2/2014 (62 MDM 2014). On July 15, 2014, the PCRA court entered
an order stating that it had reviewed all “docket filings” and found “no record
_______________________
(Footnote Continued)
quoting Chaidez v. United States, 133 S.Ct. 1103, 1106 n.1 (U.S. 2013).
Here, Codner lists his address on his pro se brief as the York County Prison.
Accordingly, his only avenue for relief is through the PCRA. See
Commonwealth v. Kutnyak, 781 A.2d 1259, 1261 (Pa. Super. 2001)
(“[T]he PCRA is the exclusive vehicle for obtaining post-conviction collateral
relief.”).
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of the alleged filing of a Notice of Appeal in this matter.” Order, 7/15/2014.
Accordingly, this Court entered an order on July 18, 2014, denying Codner’s
application for relief “to the extent that he has no notice of appeal docketed
in this Court,” but permitting him to seek “appropriate relief with the Berks
County Court of Common Pleas.” Order, 7/18/2014.
Thereafter, on July 23, 2014, Codner filed a “Notice of Appeal Nunc Pro
Tunc” in the PCRA court. The PCRA court considered Codner’s filing a
request to appeal nunc pro tunc, and in response, entered an order on July
28, 2014, stating (1) Codner’s PCRA petition was dismissed on March 24,
2014, (2) Codner failed to file a notice of appeal within 30 days of that
order, and (3) Codner’s present request for an appeal is untimely. See
Order, 7/28/2014. Codner’s July 23, 2014, notice of appeal nunc pro tunc
was docketed in this Court at 1247 MDA 2014.
Thereafter, on August 8, 2014, Codner filed a notice of appeal from
the PCRA court’s July 28, 2014, order. That appeal was docketed in this
Court at 1350 MDA 2014.5
On August 19, 2014, at Docket No. 1247 EDA 2014, this Court issued
Codner a Rule to Show Cause why his appeal filed on July 23, 2014, should
not be quashed as untimely. Codner filed a timely response arguing this
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5
On August 18, 2014, the PCRA court directed Codner to file a concise
statement or errors complained of on appeal pursuant to Pa.R.A.P. 1925(b).
Codner complied with the court’s directive, and filed a concise statement on
August 27, 2014.
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Court should take judicial notice of the fact that he had filed a timely notice
of appeal on April 7, 2014. This Court then discharged the Show Cause
Order, referred the matter to the panel for disposition, and directed the
appeal be listed consecutively with Codner’s appeal at Docket No. 1350 MDA
2014. Subsequently, on December 4, 2014, the appeal at Docket No. 1247
MDA 2014, was dismissed when Codner failed to file a brief. Therefore, the
only appeal before us is the appeal, docketed at No. 1350 MDA 2014, from
the PCRA court’s order denying Codner’s request to appeal nunc pro tunc.
Before we may address Codner’s substantive claims on appeal, we
must determine whether the appeal is properly before us. Upon review of
the record, the parties’ briefs, and the relevant statutory and caselaw, we
conclude Codner had no authority to seek nunc pro tunc relief from the PCRA
court outside the construct of the PCRA. Accordingly, the PCRA court should
have considered Codner’s request a second PCRA petition, and dismissed it
as untimely filed.
This Court’s decision in Commonwealth v. Fairiror, 809 A.2d 396,
(Pa. Super. 2002), appeal denied, 827 A.2d 429 (Pa. 2003), is instructive.
In Fairiror, the appellant filed a timely pro se PCRA petition. Counsel was
appointed, but later withdrew when the appellant retained private counsel.
Private counsel was granted two extensions of time to file an amended
petition, but failed to do so. Subsequently, the PCRA court issued an order,
dismissing appellant’s petition. No appeal was filed within 30 days. Rather,
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six months later, private counsel filed an amended PCRA petition, and six
months after that, counsel filed a petition in the PCRA court for
reinstatement of the appellant’s PCRA rights nunc pro tunc. The PCRA court
granted the petition. Id. at 396-397.
However, a panel of this Court concluded that PCRA court had no
jurisdiction to consider the appellant’s request for nunc pro tunc relief.
Rather, the panel held:
Appellant’s … petition for reinstatement of PCRA appellate
rights nunc pro tunc must be considered a second (and
untimely) PCRA petition. In Commonwealth v. Lantzy, 558
Pa. 214, 736 A.2d 564, 572 (1999), our Supreme Court held
that a petitioner has no right to a nunc pro tunc appeal outside
the PCRA to restore direct appeal rights lost due to
ineffectiveness of counsel. More recently, our Supreme Court
held that the PCRA provides the sole means for restoration of
direct appeal rights. Commonwealth v. Hall, 565 Pa. 92, 771
A.2d 1232, 1235 (2001) (“by its own language, and by judicial
decisions interpreting such language, the PCRA provides the sole
means for obtaining state collateral relief”).
Although Hall and Lantzy dealt with the restoration of
direct appeal rights, these cases teach that all requests for
reinstatement of appellate rights, including PCRA
appellate rights, must meet the timeliness requirements
of the PCRA. We recognize that this Court, on several
occasions, has held to the contrary. In Commonwealth v.
Ross, 763 A.2d 853, 856-857 (Pa.Super.2000), this Court
reasoned that reinstatement of PCRA appellate rights nunc pro
tunc was a viable remedy outside the strictures of the PCRA for
petitions pre-dating our Supreme Court’s decision in Lantzy.
Id., citing, Commonwealth v. Garcia, 749 A.2d 928, 931
(Pa.Super.2000) (en banc), and Commonwealth v. Hitchcock,
749 A.2d 935 (Pa.Super.2000) (en banc). Ross is
distinguishable because Appellant’s nunc pro tunc petition in the
instant case post-dated Lantzy. Moreover, in Commonwealth
v. Rivera, 802 A.2d 629, 2002 PA Super 193, ¶¶ 14-15, this
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Court held that Hall effectively overruled Garcia and Hitchcock
by applying Lantzy retroactively.
Id. at 397-398.
Accordingly, because the Fairiror Court determined (1) the second
PCRA petition (styled as a petition for nunc pro tunc relief) was untimely
filed, and (2) the appellant failed to plead or prove one of the time-for-filing
exceptions, the PCRA court had no jurisdiction to grant reinstatement of the
appellant’s PCRA appellate rights. Therefore, this Court affirmed the order
denying PCRA relief.
The case at issue presents a similar factual scenario. When the PCRA
court determined Codner had not filed a timely notice of appeal from the
March 28, 2014, order dismissing his PCRA petition, Codner’s only avenue
for relief was to file a second PCRA petition, seeking reinstatement of his
PCRA appellate rights. Accordingly, the PCRA court should have considered
Codner’s July 23, 2014, notice of appeal nunc pro tunc as a petition for PCRA
relief.
However, even if the court had properly considered Codner’s filing to
be a PCRA petition, Codner would, nevertheless, be entitled to no relief,
since the petition was untimely filed.
The PCRA mandates that any petition for relief, “including a second or
subsequent petition, shall be filed within one year of the date the judgment
becomes final[.]” 42 Pa.C.S. §9545(b)(1).
The PCRA’s timeliness requirements are jurisdictional; therefore,
a court may not address the merits of the issues raised if the
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petition was not timely filed. The timeliness requirements apply
to all PCRA petitions, regardless of the nature of the individual
claims raised therein.
Commonwealth v. Jones, 54 A.3d 14, 16 (Pa. 2012) (internal citations
omitted).
Codner’s judgment of sentence became final on April 18, 2012, thirty
days after this Court affirmed the judgment of sentence on direct appeal,
and Codner failed to petition the Pennsylvania Supreme Court for allowance
of appeal. See 42 Pa.C.S. § 9545(b)(3). Accordingly, Codner had until April
18, 2013, to file a timely PCRA petition. The present petition, filed 15
months later on July 23, 2014, was patently untimely. Moreover, Codner
failed to plead or prove one of the time-for-filing exceptions set forth in
Section 9545(b)(1). Accordingly, we conclude the PCRA court properly
denied Codner relief.6 See Commonwealth v. Reed, 107 A.3d 137, 144
(Pa. Super. 2014) (“[W]e may affirm the PCRA court's order on any basis.”).
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6
We would be remiss if we did not comment on Codner’s pro se status.
While the record reflects Codner filed a motion to proceed pro se on January
3, 2013, and the trial court, following a “counsel status hearing,” granted
Codner’s request on March 26, 2013, there is no indication, in either the
court’s order or the record, that the PCRA court conducted a full waiver-of-
counsel hearing in accordance with Commonwealth v. Grazier, 713 A.2d
81 (Pa. 1998). See Commonwealth v. Stossel, 17 A.3d 1286 (Pa. Super.
2011) (holding appellate court is required to consider, sua sponte, whether
indigent first-time PCRA petitioner failed to properly waive his right to
counsel). Moreover, as noted in footnote 3, there is no transcript from the
March 14, 2013, “counsel status hearing” so we are unable to determine
whether the hearing complied with the dictates of Grazier. Nevertheless,
because of the procedural posture of this appeal, we have no jurisdiction to
(Footnote Continued Next Page)
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Order affirmed. All outstanding pro se applications for relief are
hereby DENIED.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 4/8/2015
_______________________
(Footnote Continued)
take any action to determine whether Codner voluntarily waived his right to
PCRA counsel.
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